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Holding water

Wading into Polson’s development dilemma

The city of Polson sits on the banks of the largest freshwater lake in the West, so the fact that the most contentious issue facing the city hinges on the availability of water is more than a little ironic.

In 1998, when existing city wells were having trouble meeting demand and water rights conflicts with the Confederated Salish and Kootenai Tribes made drilling new wells impossible, Polson’s City Council enacted a moratorium greatly limiting new construction in the city. In October 2004, City Council repealed that moratorium. Since then developers have proposed subdivisions that would create 513 new residential lots in Polson, compared to proposals for 208 lots in the previous two years combined. To some, the May approval of the 303-unit Cougar Ridge subdivision, one of the largest developments ever proposed for the city, symbolizes the imminent change the moratorium’s repeal brings to Polson.

But a lawsuit filed this summer by nonprofit group Polson Citizens for Better Government (PCBG) seeks to undo the events of the last year by forcing the city to reinstate the moratorium and reverse its approval of Cougar Ridge.

The suit alleges that council’s repeal of the moratorium was arbitrary and capricious, and that former councilman Mike Maddy, who is also the developer of Cougar Ridge, had a conflict of interest when it came to lifting the moratorium. Maddy’s subdivision was reviewed for the first time at the council meeting immediately following the one at which the moratorium was lifted, and council approved the development’s first phase in May 2005.

According to city administrators, the impetus for lifting the moratorium—approved unanimously by the council, including Maddy—was the recent completion of a pipeline capable of moving water from wells on the west side of the Flathead River to the east side, where most Polson residents live, ostensibly alleviating the water supply issue.

PCBG alleges several problems with using the pipeline to justify lifting the moratorium.

For one, they point out that the pipeline is technically only temporary. It is built on the shores of the Flathead River, on land owned by the Confederated Salish and Kootenai Tribes, and the agreement between the city and the tribes specifies that the city may be forced to remove it at anytime.

The suit also alleges that funding used to build the pipeline—a $500,000 grant from the Treasure State Endowment Program—was obtained illegally, given that the state was allegedly never notified of the temporary nature of the agreement.

But Polson Mayor Randy Ingram disputes the characterization of the pipeline as temporary. The agreement under which it was built, he says, is the same agreement under which residents on the south end of Flathead Lake install their docks.

“So if the tribe says everybody has to remove everything from the riverbed, or lake bed, then that might be a problem, but the probability of that is pretty slim,” Ingram says.

Besides, he says, in the future a new bridge will likely be built across the Flathead, and when that happens, the city plans to incorporate a permanent pipeline in its construction. There are currently no plans underway to build such a bridge.

PCBG further alleges that the city should have studied its water supply before lifting the moratorium. The city did eventually complete a supply study, but not until after council had lifted the moratorium. Irregular circumstances surrounding the study are a good part of what aroused PCBG President Margie Hendricks’ suspicions about the city.

John Campbell was the city’s water and sewer superintendent for 18 years until he retired in 2002. When Campbell, who is not a PCBG member, learned the moratorium had been lifted, he set about studying the city’s water supply himself.

After examining four years of pumping records, he came to the conclusion that the moratorium should not have been lifted, a conclusion he shared at Polson’s Dec. 14, 2004, City Council meeting. In response to Campbell’s study, current water and sewer superintendent Tony Porrazzo announced that the city had commissioned its own $30,000 water study by Helena-based engineering firm Anderson-Montgomery. Porrazzo said the study would be ready in January.

Hendricks thought it strange that a study was being conducted after the moratorium was repealed, but says she and other citizens waited until the water report was in before passing judgment.

The report, which concluded the city had five years worth of water, wasn’t actually completed until late March, and was revealed to the public in May 2005.

What disappointed Hendricks more than the delay was the final study, and she wasn’t the only one unhappy with it.

In May, at the first council meeting after the city’s water report is made public, councilman Tom Corse raised questions about the thoroughness of the Anderson-Montgomery study and was told that Anderson-Montgomery had not originally been hired to do a study of supply.

But the study’s relative timeliness and/or thoroughness, Ingram and Maddy now say, is beside the point when it comes to the moratorium. Both point to language in the original moratorium specifying that it shall remain in effect “until such time as a new supply of water to the city of Polson is identified.”

“It didn’t say when a new study was done, or a new analysis was done,” Maddy says.

Maddy also adds, “We do not take advice from citizens on engineering. We hire the best engineers we can at the city of Polson, and we take their advice. The analysis says we have adequate water.”

But Hendricks still questions why the city waffled on the release of its study, and whether or not the study would take supply into account.

“How much water do we have? That was our only question,” she says.

Hendricks suggests that the city’s answer was delayed, and then proved less than satisfactory, due to Maddy’s presumed interest, as developer of Cougar Ridge, in hiding information that might call the lifting of the moratorium into question.

Hendricks points to one particular fact she believes supports that conclusion: Maddy submitted a pre-application for Cougar Ridge in September 2004, just a month before the moratorium, in place for six years, was lifted, putting Cougar Ridge near the front of the line for consideration.

Maddy calls the conflict of interest charge “crap,” saying, “The county did an investigation on the conflicts of interest; the county found there was no conflict of interest.”

Lake County attorney Bob Long says PCBG requested him to determine if there was “criminal conflict of interest” in having a development under review while serving as the council’s representative on the city water and sewer department and the planning department. Long concluded there was not. His investigation, he says, involved talking to the mayor and the city attorney.

In defending City Council’s decision to lift the moratorium when it did, Maddy and Ingram also refer to the original moratorium’s language. It states, “The provisions of this resolution should not apply within the areas encompassed by the Wellhead Protection Areas or the West Shore Subdivision, those areas being specifically exempted from the operation of this resolution.”

At the time the moratorium was lifted, Cougar Ridge lay within a Wellhead Protection Zone, making it, according to Ingram and Maddy, exempt from the moratorium.

Hendricks isn’t so sure. She points to language City Council approved in its 1998 vote enacting the moratorium, which says, “Any lot within Wellhead Protection Zones would be exempt.” She notes that the exemption covers lots, but not the extension of water mains to supply them. In order to develop Cougar Ridge, Maddy needed water mains extended to his lots. Maddy himself admits his original subdivision application for Cougar Ridge was turned down in 2000 because at the time the city believed the moratorium applied to main extensions. He says that after becoming a council member in 2002, he came to believe it did not apply to such extensions.

“The city lied to me,” Maddy says now. “The city told me that we couldn’t extend water mains during the first moratorium…the moratorium said different.”

The city has now filed a motion to dismiss PCBG’s suit on technical grounds. Curiously, the motion does not reference Maddy and Ingram’s position that the city was compelled by the completion of a new pipeline to lift the moratorium, or that Cougar Ridge was outside the moratorium’s specified boundaries.

More than likely, the courts will soon decide if the moratorium’s repeal stands, and whether Maddy can continue with his development. If the council’s decision stands, Polson will begin to grow again, like its neighbors to the north and south. If the moratorium is reinstated, it will likely be lifted later,. Either way, Polson will remain tangled up in its water.